Fred Eugene Tyson v. Brian Belleque

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED EUGENE TYSON,
Petitioner - Appellant,
v.
BRIAN BELLEQUE,
Respondent - Appellee.
No. 09-35908
D.C. No. 3:07-cv-01707-ST
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Janice M. Stewart, Magistrate Judge, Presiding
Argued and Submitted October 5, 2010
Portland, Oregon
Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.
Petitioner-Appellant Fred Eugene Tyson, a state prisoner, appeals the district
court’s denial of his habeas petition. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
FILED
OCT 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
We review de novo the district court’s denial of a habeas petition. Schell v.
Witek, 218 F.3d 1017, 1022 (9th Cir. 2000). Tyson’s habeas petition is governed
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under
the AEDPA, we must determine whether the state court proceedings “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). In reviewing a state court decision, we consider the “last
reasoned state-court decision.” Van Lynn v. Forman, 347 F.3d 735, 738 (9th Cir.
2003). In this case, the last reasoned state-court decision is the trial court’s ruling
at Tyson’s 1998 trial.
Tyson argues that his constitutional rights were violated by the admission at
trial of an incriminating statement that he made in response to custodial
interrogation: “They know I’m innocent. They see me about to win this case so
they are falsely accusing me of having sex with [J.T.]. They are willing to come
up with anything.” It is clearly established federal law that incriminating
statements made during custodial interrogation are not admissible against a
criminal defendant unless the defendant was made aware of her rights to silence
and counsel and voluntarily waived them before speaking. Miranda v. Arizona,
384 U.S. 436, 444-45 (1966). The requirements of Miranda apply when the

-- 2 of 4 --

3
prosecution seeks to use a statement “stemming from custodial interrogation of the
defendant,” but not when the prosecution seeks to use a voluntary statement. Id. at
444, 472.
It is undisputed that Tyson was in custody when he made the incriminating
statement because he was questioned in a locked room in a county detention center.
We must determine whether Tyson’s statement was made in response to
interrogation.
It is clearly established federal law that “interrogation,” for purposes of
Miranda, includes “express questioning” or “any words or actions on the part of
the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response from
the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Tyson argues
that he was interrogated by Rhodes because he was asked an express
question—whether J.T. was his son. Tyson also argues that Rhodes’s words and
actions were the “functional equivalent” of express questioning because Rhodes
should have known that they were reasonably likely to elicit an incriminating
response from Tyson.
We conclude that the state court did not unreasonably apply federal law
when it determined that Tyson’s statement was not the result of custodial

-- 3 of 4 --

4
interrogation. Tyson’s statement was not made in response to an express
question—it was made in response to Rhodes’s assertion that he wanted to talk to
Tyson about a criminal investigation. It was not unreasonable for the state court to
conclude that Rhodes’s assertion (that he wanted to talk about a criminal
investigation) was not reasonably likely to elicit an incriminating response. Nor
was it unreasonable for the state court to find that Tyson’s incriminating statement
was made voluntarily.
Because Tyson’s statement did not stem from custodial interrogation, the
protections of Miranda do not apply. In light of this determination, we need not
reach the question of whether Tyson knowingly, intelligently, and voluntarily
waived his rights. The state court’s decision to deny Tyson’s motion to suppress
was not contrary to nor an unreasonable application of clearly established federal
law. We affirm the district court’s denial of habeas relief.
AFFIRMED.

-- 4 of 4 --